The legal case against a Palestinian state ~ Elder Of Ziyon

Wednesday, August 06, 2025

The legal case against a Palestinian state

We have seen many explain the folly of Western states recognizing a "State of Palestine."

* It rewards Hamas terror.

* It makes peace less likely since Hamas sees this as vindication of its methods and is less likely to make concessions.

* It rewards Palestinian Authority human rights violations and corruption.

* It assumes that the PA is a better partner than Hamas, when it has done nothing to prove it can run a state.

* It is essentially a punishment for Israel

* It cannot be taken back, no matter what awful things the PA does.

* It makes no sense. At all.

But UK Lawyers for Israel also points out that it is legally problematic as well:

Montevideo Convention

The qualifications for recognition as a state set out in the Montevideo Convention have long been regarded as customary international law. They are “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states”. These qualifications are not met in relation to a supposed new Palestinian State:

Government: As matters stand there is no single Palestinian government. To the extent that there remains a Palestinian government in the Gaza Strip, it is Hamas - not the Palestinian Authority (PA) which administers 40% of the West Bank pursuant to the Oslo Accords.

Capacity to enter into relations with other states: Hamas is designated as a terrorist organisation by the United Kingdom, the United States, the European Union and other countries. It does not have capacity to enter into relations with other states. Art. IX.5 of the Oslo II Accord specifies that the PA does not have powers in the sphere of foreign relations, save that the Palestine Liberation Organisation (PLO) may enter into economic, aid, cultural, scientific and educational agreements for the benefit of the PA.

Permanent population: UNRWA and the PA maintain that nearly half of the total Palestinian population of the Gaza Strip and the West Bank are refugees, i.e. not the permanent population of these areas.

Defined territory: The territory of a new Palestinian state is not defined. The complications of determining its extent and boundaries are manifold, a problem reflected in the lack of any indication in recent calls by France or the United Kingdom as to what territory they would be recognising as constituting the State of Palestine.

Under the Oslo II Accord, “borders” and “Jerusalem” are issues to be addressed by “permanent status negotiations” (Art. XXXI.5). The PA has no control over the Gaza Strip, Jerusalem or the majority of the West Bank. It merely administers part of the West Bank under the Oslo II Accord.

Furthermore, Art. XXXI.7 of the Oslo II Accord states: “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” Recognition of a Palestinian state contradicts this provision.

I do not know what this means practically, the nations that have recognized "Palestine" clearly weren't bothered that the "State of Palestine" does not fit the definitions in the Montevideo Convention.

Self-determination

Those in favour of a new Palestinian state often invoke the right to self-determination. However, first, a right to self-determination does not in itself constitute an unconditional right to a state, as Canada’s Supreme Court confirmed in the Quebec case. Still less does it imply that one or more or any of the four Montevideo qualifications have been met.

Second, self-determination requires the will of those for whom it is invoked to be established, as the Badinter Commission advised in its Opinion No. 4. This has not been done. Notably, an opinion poll by a Palestinian news agency found that 93% of Jerusalem’s Arab population preferred a continuation of Israeli rule of the whole city; while a survey by Israel’s Central Bureau Statistics found that 86% of Jerusalem’s Arabs were satisfied with their lives.

It is likely that an overwhelming majority of Jerusalem’s Jewish population would also prefer a continuation of Israeli rule. On this basis, the principle of self-determination would appear to mandate a continuation of Israeli sovereignty over the united city of Jerusalem.

This conclusion also has implications in relation to the Montevideo Convention criteria of permanent population and defined territory of a supposed Palestinian state.

Moreover, the 2024 Advisory Opinion of the International Court of Justice (ICJ), which has also been cited in support of a Palestinian state, was based on false information in this regard.

Somehow, I don't think political moves like this consider international law. But maybe, some member of British Parliament can ask these questions and expose how the Prime Minister is flouting international law just to stick it to Israel.